CONTROL AGREEMENT
This Control Agreement (the "Agreement") is made as of April 24, 1998
by and among The First National Bank of Chicago, as agent for certain financial
institutions (the "Agent"), 312 Certificate Company, a Delaware corporation
(the "Principal"), and Bank One, Kentucky, N.A., a national banking association,
with its principal office located at 416 West Jefferson Street, Louisville, KY
40202 (the "Custodian").
Each of the Agent, the Principal and the Custodian hereby agree as
follows:
PREAMBLE:
1. The Custodian and the Principal have entered into a Standard
Custody Agreement, a copy of which is attached hereto as Exhibit A (the
"Custody Agreement"), pursuant to which the Custodian has established its
custodial account number 3402824200 in the name of the Principal (the
"Account").
2. The Principal and the Agent have entered into a Pledge and
Security Agreement (as from time to time amended, restated, supplemented or
otherwise modified, the "Pledge Agreement"), in which INTER ALIA, the Principal
has granted to the Agent on behalf of the "Certificateholders" (as such term is
defined in the Pledge Agreement) a security interest in the Account and the
financial assets and any free credit balance carried therein.
3. The Agent, the Principal and the Custodian are entering into this
Agreement to provide for the control of the Account and to perfect the security
interest of the Agent in the Account and the financial assets and any free
credit balance carried therein as more fully described in the Pledge Agreement.
TERMS:
Section 1. THE ACCOUNT. The Custodian hereby represents and warrants
to the Agent and the Principal that (a) the Account has been established in the
name of the Principal as recited above, (b) the Custody Agreement, the security
entitlements arising out of the financial assets carried in the Account and such
free credit balance are valid and legally binding obligations of the Custodian,
and (c) except for the claims and interests of the Agent and of the Principal in
the Account, the Custodian does not know of any claim to or interest in the
Account or in any financial asset carried therein. The Custodian will treat all
property held by it in the Account as financial assets under Articles 8 and 9 of
the Uniform Commercial Code of the Commonwealth of Kentucky (the "Code").
Section 2. NO WITHDRAWALS. The Custodian shall neither accept nor
comply with any entitlement order from the Principal, or its authorized
representatives, withdrawing any financial assets from the Account nor deliver
any such financial assets including, without limitation, any instruments,
chattel paper or certificated securities, to the Principal, or its authorized
representatives, nor pay any free credit balance or other amount owing from the
Custodian to the Principal with respect to the Account following a Notice of
Exclusive Control (as defined below) from the Agent.
Section 3. AGENT FOR PERFECTION; PRIORITY OF LIEN. (a) Pursuant to
the Pledge Agreement, the Principal has granted to the Agent for the benefit of
Certificateholders a security interest in the Account, all financial assets
carried therein and any free credit balance therein. The Custodian consents to
such security interest and, in order to perfect the interests of the Agent in
any financial assets carried in the Account which constitute instruments,
chattel paper and certificated securities, the Custodian, acting directly or
through its agents, shall hold such financial assets, as agent hereunder for the
Agent on the terms and conditions hereinafter set forth. The Custodian shall
maintain possession of any financial assets carried in the Account which
constitute instruments, chattel paper and certificated securities, within the
State of Ohio at all times that this Agreement is in effect.
(b) The Custodian hereby confirms that the Account is a cash account
and that notwithstanding any provision of the Custody Agreement so permitting,
it will not advance any margin or other credit to the Principal therein, either
directly or indirectly by executing purchase orders in excess of any credit
balance or money market mutual funds held in the Account, executing sell orders
on securities not held in the Account or by executing trades in instruments such
as options and commodities contracts that create similar obligations, nor shall
the Custodian hypothecate any securities carried in the Account. The Custodian
hereby waives and releases all liens, encumbrances, claims and rights of setoff
the Custodian may have against the Account or any financial asset carried in the
Account or any credit balance in the Account and agrees that, except for payment
of its customary fees and commissions pursuant to the Custody Agreement, it will
not assert any such lien, encumbrance, claim or right or the priority thereof
against the Account or any financial asset carried in the Account or any credit
balance in the Account. The Custodian will not agree with any third party that
the Custodian will comply with entitlement orders concerning the Account
originated by such third party without the prior written consent of the Agent
and the Principal.
Section 4. CONTROL. Except as otherwise provided in Sections 2 and 3
above, the Custodian shall make trades of financial assets held in the Account
at the instruction of the Principal, or its authorized representatives, and
comply with entitlement orders concerning such trades from the Principal, or its
authorized representatives, until such time as the Agent delivers a written
notice to the Custodian which states that the Agent is exercising exclusive
control over the Account. Such notice is referred to herein as the "Notice of
Exclusive Control." After the Custodian receives a Notice of Exclusive Control,
it will immediately cease complying with all
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instructions or entitlement orders concerning the Account originated by the
Principal or its representatives.
Section 5. STATEMENTS, CONFIRMATIONS, RECORDS AND NOTICES OF ADVERSE
CLAIMS. The Custodian will send copies of all statements, confirmations and
other correspondence including, without limitation, any notice of termination,
concerning the Account or the Custody Agreement simultaneously to each of the
Principal and the Agent at its respective addresses for notice as specified in
Section 16. The Custodian shall also permit the Agent to inspect and audit the
records related to the Account to the same extent as the Principal shall be
authorized under Section 11 of the Custody Agreement. If any person asserts any
lien, encumbrance or adverse claim against the Account or in any financial asset
carried therein, the Custodian will promptly notify the Agent and the Principal
thereof.
Section 6. RESPONSIBILITY OF THE CUSTODIAN. Except for advancing
margin or other credit to the Principal in violation of Section 3 above, the
Custodian shall have no responsibility or liability to the Agent for making
trades of financial assets held in the Account at the instruction of the
Principal, or its authorized representatives, or complying with entitlement
orders received thereafter in accordance with Section 4 above concerning the
Account from the Principal, or its authorized representatives, which are
received by the Custodian before the Custodian receives a Notice of Exclusive
Control. The Custodian shall have no responsibility or liability to the
Principal for complying with a Notice of Exclusive Control or complying with
entitlement orders concerning the Account originated by the Agent. The Custodian
shall have no duty to investigate or make any determination as to whether the
conditions for the issuance of a Notice of Exclusive Control contained in any
agreement between the Principal and the Agent have occurred. Neither this
Agreement nor the Pledge Agreement imposes or creates any obligation or duty of
the Custodian other than those expressly set forth herein.
Section 7. TAX REPORTING. All items of income, gain, expense and loss
recognized in the Account shall be reported to the Internal Revenue Service and
all state and local taxing authorities under the name and taxpayer
identification number of the Principal.
Section 8. CUSTODY AGREEMENT. This Agreement supplements the Custody
Agreement between the Custodian and the Principal. IN THE EVENT OF A CONFLICT
BETWEEN THIS AGREEMENT AND THE CUSTODY AGREEMENT, THE TERMS OF THIS AGREEMENT
WILL PREVAIL. Regardless of any provision in the Custody Agreement, Kentucky
shall be deemed to be the Custodian's location for the purposes of this
Agreement and the perfection and priority of the Agent's security interest in
the Account.
Section 9. TERMINATION. The rights and powers granted herein to the
Agent have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy or insolvency of the Principal nor by the lapse of time. The
obligations of the Custodian under Sections 2, 3, 4 and 5 above shall continue
in effect until the security interest of the Agent in the Account has been
terminated pursuant to the
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terms of the Pledge Agreement and the Agent has notified the Custodian of such
termination in writing. Upon receipt of such notice, the obligations of the
Custodian under Sections 2, 3, 4 and 5 above with respect to the operation and
maintenance of the Account after the receipt of such notice shall terminate, the
Agent shall have no further right to originate entitlement orders concerning the
Account and the Custodian may take such steps as the Principal may request to
vest full ownership and control of the Account in the Principal, including, but
not limited to, transferring all of the financial assets and credit balances in
the Account to another securities account in the name of the Principal or its
designee.
Section 10. PORTFOLIO MANAGER. The Custodian hereby acknowledges that
Integrity Capital Advisors, Inc. (the "Portfolio Manager") has been appointed by
the Principal pursuant to that certain Investment Management Agreement dated as
of April 24, 1998 among the Principal, the Portfolio Manager and the Agent to
take any action and provide instructions to the Custodian with respect to the
Account from time to time, and the Custodian agrees that any such actions or
instructions taken or delivered by the Portfolio Manager and/or its affiliates
shall be construed as actions taken, or instructions delivered, by the Principal
for purposes of the Custody Agreement and this Agreement.
Section 11. THIS AGREEMENT. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede and discharge all prior agreements
(written or oral) and negotiations and all contemporaneous oral agreements
concerning such subject matter and negotiations. There are no oral conditions
precedent to the effectiveness of this Agreement.
Section 12. AMENDMENTS. No amendment, modification or termination of
this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
Section 13. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
Section 14. SUCCESSORS. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
corporate successors or assigns.
Section 15. RULES OF CONSTRUCTION. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and
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section numbers appearing in this Agreement are inserted only as a matter of
convenience. They do not define, limit or describe the scope or intent of the
provisions of this Agreement. Except as otherwise defined herein all terms
herein shall have the meanings ascribed thereto in Articles 8 or 9 of the Code.
Section 16. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or three days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth underneath such parties' name on the signature
page of this Agreement. Any party may change its address for notices in the
manner set forth above.
Section 17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
Section 18. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of Kentucky. The validity, terms,
performance and enforcement of this Agreement shall be governed by the laws of
the State of Kentucky which are applicable to agreements which are executed,
delivered and performed in that State.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
THE FIRST NATIONAL BANK OF CIHCAGO,
as Agent
BY: /s/ Eleanor C. Nadbielny
--------------------------------
Title: Authorized Agent
------------------------
One First National Plaza
Mail Suite 0594
Chicago, Illinois 60670-0594
Attention: Ann Marie Somers
Facsimile No.: (312) 732-4487
312 CERTIFICATE COMPANY
BY: /s/ Robert L. Maddox
--------------------------------
Title: President
------------------------
515 West Market Street
8th Floor
Louisville, Kentucky 40202
Attention: Robert L. Maddox, President
Facsimile No. (502) 582-7903
BANK ONE, KENTUCKY, N.A
By: /s/ Thomas S. Albright
--------------------------------
Title: Vice President
416 West Jefferson Street
P.O. Box 32500
Louisville, Kentucky 40232-2500
Attention: J. Terry Strange,
Relationship Manager KYI-2306
Facsimile No. (502) 566-3954
-------------------------
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Exhibit A
to
Control Agreement
CUSTODY AGREEMENT
Attached.
BANK ONE, KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
BANK ONE, KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
EXECUTION FORM
Name of Principal: 312 CERTIFICATE COMPANY
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Address of Principal:
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Execution Date:
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Effective Date:
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This Standard Custody Agreement is entered into on the Execution Date set forth
above, effective on the Effective Date set forth above, by and between the above
named Principal ("Principal") and Bank One, Kentucky, N.A., ("Custodian"), with
its principal offices located at 416 West Jefferson Street, Louisville, KY
40202. In consideration of the mutual covenants and conditions of this
agreement, the Custodian and Principal hereby agree to the provisions of this
agreement attached hereto and the Schedules, if any, of this agreement attached
hereto.
IN WITNESS WHEREOF, this agreement is executed by Custodian and the Principal on
the Execution Date.
CUSTODIAN PRINCIPAL
Bank One, Kentucky, N.A. 312 CERTIFICATE COMPANY
By: /s/ Thomas S. Albright By: /s/ Robert L. Maddox
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Printed Name: Thomas S. Albright Printed Name: Robert L. Maddox
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Title: VP Title: President
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Dated: 4/21/98 Dated: 4/23/98
-------------------------- -----------------------
By: /s/ Robert L. Maddox
--------------------------
Printed Name: Robert L. Maddox
-----------------
Title: President
----------------------
DATED: 4/23/98
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BANK ONE, KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
TABLE OF CONTENTS FOR PROVISIONS
Section 1 Appointment of Custodian
Section 2 Delivery of Securities, Cash and Other Property
Section 3 Accounts
Section 4 Proper Instructions
Section 5 Collection of Income
Section 6 Short-Term Investments
Section 7 Payment of Monies
Section 8 Duties of Custodian with Respect to Securities of the
Principal Held by Custodian
Section 9 Voting and Other Actions
Section 10 Responsibility of Custodian
Section 11 Records and Reports
Section 12 Effective Period, Termination and Interpretive and
Additional Provisions
Section 13 Successor Custodian
Section 14 Compensation of Custodian and Reimbursement of Expenses
Section 15 Notices
Section 16 Overdrafts or Indebtedness
Section 17 Governing Law
Section 18 Severability
Section 19 Non-Waiver
Section 20 No Third Party Benefit
Section 21 Captions
Section 22 Dispute Resolution and Arbitration
Section 23 Entire Agreement
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BANK ONE, KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
PROVISIONS
These Provisions are applicable to the Standard Custody Agreement between the
Custodian and the Principal described in the foregoing Execution Form.
1. APPOINTMENT OF CUSTODIAN. Subject to the terms and conditions of
this agreement, the Principal hereby appoints and Custodian hereby accepts the
appointment by the Principal as custodian for certain cash, securities and other
property owned by the Principal and delivered to Custodian.
2. DELIVERY OF SECURITIES, CASH AND OTHER PROPERTY. The Principal
shall deliver to Custodian cash, securities and other property. Custodian shall
accept for deposit hereunder additional cash, securities and property upon
receiving written notice from Principal. Custodian shall only be responsible for
custody hereunder of cash, securities and property delivered to it and then only
while the cash, securities and property are held in and as a part of the
custodial account. Such cash, securities (hereinafter "Securities") and other
property held in and as part of the custodial account shall hereinafter be
referred to as the "Assets."
3. ACCOUNTS. Custodian shall open and maintain a separate account or
accounts in the name of the Principal, subject only to draft or order by
Custodian pursuant to the terms of this agreement, and shall maintain in such
account or accounts all cash received by it for the account of the Principal.
All separate accounts governed by this agreement are listed in Schedule B
attached hereto.
4. PROPER INSTRUCTIONS. For purposes of this agreement, "proper
instructions" shall mean (a) any oral authorizations, instructions or approvals
of any kind transmitted to Custodian in person or by telephone by a person
believed in good faith by Custodian to be a person authorized by a resolution of
the Board of Directors of the Principal; or (b) written authorizations,
instructions, or approvals of any kind transmitted to Custodian by mail,
personal delivery, facsimile, telegram or other written means by a person
believed in good faith by Custodian to be a person authorized by a resolution of
the Board of Directors of the Principal to give such authorizations,
instructions or approvals on behalf of the Principal. The Principal shall
confirm any oral authorization, instruction or approval described in (a), above,
the same business day by transmittal to Custodian of a written authorization,
instruction or approval described in (b), above.
5. COLLECTION OF INCOME. Custodian shall collect all income and
other payments with respect to registered Securities held hereunder to which the
Principal shall be entitled by law or pursuant to custom in the securities
business, and shall collect all income and principal and other payments with
respect to bearer Securities if, on the date of payment by the issuer, such
Securities are held by Custodian or agent thereof, and shall deposit such income
and principal, as collected, into the Principal's account. Without limiting the
generality of the foregoing, Custodian shall detach and present for payment all
coupons and other income and principal items requiring presentation as and when
they become due, shall collect dividends and interest when due on Securities
held hereunder, and shall endorse and deposit for collection, in the name of the
Principal, checks, drafts, and other negotiable instruments on the same day as
received.
With respect to Securities of foreign issuers, while Custodian
will use its best efforts to collect any monies which may to its knowledge
become collectible arising from such Securities, including dividends, interest
and other income, it is understood that Custodian shall be under no
responsibility for any failure or delay in effecting such collections or giving
such notices.
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Custodian shall not be under any obligation or duty to take action to
effect collection of any amount, if the Securities (domestic or foreign) on
which such amount is payable are in default and payment is refused after due
demand or presentation. Custodian will, however, notify the Principal in writing
of such default and refusal to pay.
6. SHORT-TERM INVESTMENTS. It is contemplated that Principal will,
from time to time, provide Custodian with written guidelines setting forth
specific short term interest bearing and short term discount obligations
which are acceptable to Principal, and Custodian agrees to act within said
guidelines.
In the absence of written guidelines from Principal, Custodian is
specifically authorized, empowered and directed to invest any short term monies
in:
(i) Securities of any open-end or closed-end management
type investment company or investment trust registered under the
Investment Company Act of 1940, as amended, which would be
regarded by prudent businessmen as a safe investment. The fact
that Custodian, any affiliate of Custodian, or any affiliate of
BANC ONE CORPORATION is providing services to and receiving
remuneration from the foregoing investment company or investment
trust as investment advisor, custodian, transfer agent,
registrar, or otherwise shall not preclude Custodian from
investing in the securities of such investment company or
investment trust;
(ii) Savings accounts, time deposit accounts, certificates
of deposit, money market funds or other evidences of deposit
issued by Bank One, Columbus, N.A. and/or any other national
bank, savings and loan institution, state member bank, state
non-member bank, or other depository institution which now or in
the future is an affiliate or subsidiary of Custodian or of BANC
ONE CORPORATION.
7. PAYMENT OF MONIES. Custodian shall pay out monies from the
custodian account in the following cases only:
(a) Upon the purchase of Securities for the account of the
Principal but only (i) against the delivery of such
Securities to Custodian (or any bank, banking firm or trust
company doing business in the United States or abroad which
has been designated by Custodian as its agent for this
purpose) registered in the name of the Principal or in the
name of a nominee of the Principal or in the name of a
nominee of Custodian or in proper form for transfer; (ii)
in the case of a purchase effected through a Securities
Depository, in accordance with the conditions set forth in
Section 8 below; or (iii) in the case of repurchase
agreements entered into between the Principal and another
bank or broker-dealer, against delivery of Securities
either in certificate form or through an entry crediting
Custodian's account at the Federal Reserve Bank with such
securities.
(b) In connection with conversion, exchange or surrender of
Securities owned by the Principal as set forth in Section 8
of this agreement;
(c) For any other purpose of the Principal, but only upon
receipt of proper instructions from the Principal specifying
the amount of such payment, setting forth the purpose for
which such payment is to be made, declaring such purpose to
be a proper purpose, and naming the person or persons to
whom such payment is to be made.
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8. DUTIES OF CUSTODIAN WITH RESPECT TO SECURITIES OF THE PRINCIPAL
HELD BY CUSTODIAN.
(a) DEPOSIT OF SECURITIES. Custodian may deposit the
Securities:
(i) in the bank vault of Custodian;
(ii) in such other banks or trust companies as Custodian
may deem appropriate;
(iii) in its accounts with a clearing agency registered
with the Securities and Exchange Commission (the
"Commission") under Section 17A of the Securities
Exchange Act of 1934 (the "Exchange Act"), which
acts as a securities depository (the "Securities
Depository"); or
(iv) in a book-entry account which is maintained for the
Custodian by a Federal Reserve Bank (the "Book Entry
Account").
(b) SECURITIES DEPOSITORY AND BOOK ENTRY ACCOUNTS. So long as
Custodian maintains any account pursuant to subparagraphs
(a)(iii) or (a)(iv) above for the Principal, Custodian
shall:
(i) deposit the Securities in such an account that
includes only assets held for the Principal;
(ii) with respect to Securities transferred to the
account of the Principal, identify as belonging to
the Principal a quantity of such Securities in the
fungible bulk of Securities (A) registered in the
name of Custodian or its nominee, or (B) shown on
Custodian's account on the books of the Securities
Depository, the Book-Entry Account, or Custodian's
agent;
(iii) promptly send to the Principal reports received from
the appropriate Federal Reserve Bank or Securities
Depository on its system of internal accounting
control; and
(iv) send to the Principal such reports of the systems of
internal accounting control of Custodian and its
agents through which such Securities are deposited
as are available and as the Principal may reasonably
request from time to time.
(c) HOLDING SECURITIES. Custodian shall hold and physically
segregate for the account of the Principal all Securities
owned by the Principal other than Securities held in a
Securities Depository or Book Entry Account, as provided
in subparagraphs (a) and (b) of this Section 8.
(d) REGISTRATION OF SECURITIES. Securities held by Custodian
(other than bearer Securites) shall be registered in the
name of the Principal or in the name of any nominee of the
Principal or of any nominee of Custodian. All Securities
accepted by Custodian on behalf of the Principal under the
terms of this agreement shall be in "street name" or other
good delivery form.
(e) DELIVERY OF SECURITIES. Custodian shall release and deliver
Securities owned by the Principal held by Custodian or in
a Securities Depository or Book Entry Account for
Custodian only upon receipt of proper instructions, which
may be continuing instructions when Principal and Custodian
specifically agree in writing, and only in the following
cases:
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(i) Upon the sale of such Securities for the account of
the Principal and the receipt of payment therefor;
(ii) Upon the receipt of payment in connection with any
repurchase agreement related to such Securities
entered into by the Principal;
(iii) In the case of a sale effected through a Securities
Depository or Book Entry Account, in accordance with
the provisions of subparagraphs (a) and (b) of this
section 8;
(iv) In connection with tender or other similar offers
for Securities owned by the Principal, provided
that, in any such case, the cash or other
consideration is to be delivered to Custodian;
(v) To the issuer thereof or its agent when such
Securities are called, redeemed, retired, or
otherwise become payable, provided that, in any such
case, the cash or other consideration is to be
delivered to Custodian;
(vi) To the issuer thereof, or its agent, for transfer
into the name of the Principal, or into the name of
any nominee or nominees of Custodian, or for
exchange for a different number of bonds,
certificates or other evidence representing the
same aggregate face amount or number of units, or
for exchange of interim receipts or temporary
securities for definitive securities, provided
that, in any such case, the new Securities are to
be delivered to Custodian;
(vii) To the broker selling the same for examination in
accordance with "street delivery" custom provided
that Custodian may adopt such procedures to ensure
their prompt return to Custodian by the broker in
the event the broker elects not to accept them;
(viii) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization, or readjustment of the Securities
of the issuer of such Securities, or pursuant to
provisions for conversion contained in such
Securities, provided that, in any such case, the
new Securities and cash, if any, are to be
delivered to Custodian.
(ix) In the case of warrants, rights or similar
Securities, the surrender thereof upon the exercise
of such warrants, rights or similar Securities or
the surrender of interim receipts or temporary
Securities for definitive Securities, provided
that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(x) For delivery in connection with any loans of
Securities made by the Principal, but only against
receipt of adequate collateral as specified from
time to time by proper instructions of the
Principal;
(xi) For delivery as security in connection with any
borrowings by the Principal requiring a pledge of
assets by the Principal but only against receipt of
amounts borrowed;
(xii) For delivery in accordance with the provisions of
any agreement among the Principal, Custodian and a
broker-dealer registered under the Exchange Act and
a member of the National Association of Securities
Dealers, Inc. ("NASD"), relating to compliance with
the rules of The Options Clearing Corporation
(the "O.C.C.")
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and of any registered national securities exchange
or any similar organization, regarding escrow or
other arrangements in connection with transactions
of the Principal; and
(xiii) For any other purpose of the Principal, but only
upon receipt of proper instructions from the
Principal specifying the Securities to be
delivered, setting forth the purpose for which such
delivery is to be made, declaring such purpose to
be a proper purpose, and naming the person or
persons to whom delivery of such Securities shall
be made.
(f) SECURITY HOLDINGS DISCLOSURE. Custodian is not authorized
and shall not disclose the name, address or security
positions of the Principal in response to requests
concerning shareholder communications under Section 14 of
the Exchange Act, the rules and regulations thereunder,
and any similar statute, regulation, or rule in effect
from time to time.
9. VOTING AND OTHER ACTIONS. Custodian shall promptly deliver or
mail to the Principal all forms of proxies and all notices of meetings affecting
or relating to Securities held for the account of the Principal. Upon receipt of
proper instructions, Custodian shall execute and deliver such proxies or other
authorizations as may be required. Neither Custodian nor its nominee shall vote
any Securities or execute any proxy to vote the same or give any consent to take
any other action with respect thereto.
Custodian shall release and deliver such Securities and take any
other action as directed by the Principal, with respect to dividends, splits,
distributions, spin-offs, puts, calls, conversions, redemptions, tenders,
exchanges, mergers, reorganizations, rights, warrants or any other similar
activity relating to the Securities. Custodian shall request direction of
Principal upon receipt of actual notice where Principal has an option as to any
such activity. For purposes of this paragraph, Custodian shall be deemed to have
actual notice if any such activity is published in one or more of the following
publications: J.J. Kenny's Munibase System, Financial Card Service, Xitek, Inc.,
Standard & Poors' Called Bond Listing, Depository Trust Reorganization Notices,
and THE WALL STREET JOURNAL. If Custodian does not have actual notice of such
activity, any such activity will be handled by Custodian on a "best efforts"
basis.
10. RESPONSIBILITY OF CUSTODIAN. As long as and to the extent that it
exercises reasonable care, Custodian shall not be responsible for the title,
validity or genuineness of any property or evidence of title thereto received by
it or delivered by it pursuant to this agreement and Custodian shall be held
harmless in acting upon proper instructions and shall be entitled to receive as
conclusive proof of any fact or matter required to be ascertained by it
hereunder, a certificate by the President, Treasurer, or Secretary or Assistant
Secretary of the Principal. Custodian may receive and accept a certified
resolution of the Board of Directors of the Principal as conclusive evidence of
the authority of any person to act in accordance with such vote.
Custodian shall be entitled to rely upon and may act upon advice
of counsel (who may or may not be counsel for the Principal) on all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice.
If the Principal requires Custodian to take any action with
respect to Securities, which action involves the payment of monies or which
action may, in the opinion of Custodian, result in Custodian's or its nominee's
being liable for the payment of money or incurring liability of some other form,
the Principal, as a prerequisite to requiring Custodian to take such action,
shall provide indemnity to Custodian in an amount and form satisfactory to
Custodian.
Principal hereby agrees to indemnify Custodian and hold Custodian
harmless from and against any and all costs, expenses, damages, liabilities and
claims (including reasonable attorneys' fees and accountants' fees) sustained or
incurred by or asserted against Custodian by reason or as a result of any action
or inaction, or arising
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out of Custodian's performance hereunder; provided, that Principal shall not
indemnify Custodian for those costs, expenses, damages, liabilities or claims
arising out of Custodian's negligence or willful misconduct. This indemnity
shall be a continuing obligation of Principal, its successors and assigns,
notwithstanding the termination of this agreement.
Custodian shall not be responsible or liable for any failure or
delay in the performance of its obligations under this agreement arising out of
or caused directly or indirectly, by circumstances beyond its reasonable
control, including without limitation: acts of God; earthquakes; fires; floods;
wars; civil or military disturbance; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, communications service; accidents; labor
disputes; acts of civil or military authority; governmental action; or inability
to obtain labor, material, equipment or transportation.
Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
agreement.
11. RECORDS AND REPORTS. Principal hereby acknowledges that it may
have the right to receive broker confirmations within the time period prescribed
by 12 C.F.R. Section 12.5 at no additional cost. In lieu of receiving such
confirmations within such time period, Custodian and Principal agree to the
alternative procedures set forth in this Section 11. Custodian shall create and
maintain records relating to its activities and obligations under this agreement
as Custodian and the Principal shall agree to and in such manner as will meet
the obligations of the Principal, if any, under Federal and State tax laws and
any other law or administrative rules or procedures which may be applicable to
the Principal. All such records shall remain the property of the Principal, and
shall be open to the inspection and audit at reasonable times by duly authorized
officers, employees or agents of the Principal. Custodian shall, at the
Principal's request, supply the Principal with a tabulation of Securities owned
by the Principal and held by Custodian and shall supply to the Principal a
report from time to time as the parties shall agree of all monies received or
paid on behalf of the Principal and of the resultant cash balance, and such
other reports as the Principal may reasonably request.
12. EFFECTIVE PERIOD, TERMINATION AND INTERPRETIVE AND ADDITIONAL
PROVISIONS. This agreement shall become effective as of the date first set
forth on the Execution Form of this agreement and may be terminated by either
party by 90 days advance notice. Upon termination hereof, the Principal shall
pay to Custodian such compensation as may be due as of the date of such
termination, and shall likewise reimburse Custodian for its costs, expenses
and disbursements as contemplated by this agreement. Upon termination, except
as otherwise provided herein including the payment of all monies owed to
Custodian as set forth in Section 14, all obligations of each party to the
other party hereunder shall cease.
In connection with the operation of this agreement, Custodian and
the Principal may agree from time to time on such provisions interpretive or in
addition to the provisions of this agreement as may in their joint opinion be
consistent with the general tenor of this agreement. Any such interpretive or
additional provisions shall be signed by both parties and annexed hereto,
provided that no such interpretive or additional provisions shall contravene any
applicable federal or state law regulations.
13. SUCCESSOR CUSTODIAN. If a successor custodian is appointed by the
Principal, Custodian shall, upon termination, deliver to such successor
custodian, duly endorsed and in form for transfer, all Securities then held
hereunder and all other property of the Principal deposited with or held by it
hereunder and Custodian shall be released of all duties and obligations under
this agreement. If no such successor custodian is appointed and this agreement
is terminated pursuant to Section 12, Custodian shall, in like manner, at its
office, upon receipt of proper instructions from the Principal, deliver such
property in accordance with such instructions. Delivery and release of
Securities and other property shall be made provided Custodian shall have no
liability for shipping or insurance costs associated therewith and full payment
has been made to Custodian of all its compensation, costs, expenses and other
amounts hereunder.
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In the event that property of the Principal remains in the possession
of Custodian after the date of termination hereof owing to the failure of the
Principal to appoint a successor custodian or provide proper instructions,
Custodian shall be entitled to compensation for its services during such period
and the provisions of this agreement relating to the duties and obligations of
Custodian shall remain in full force and effect. Alternatively, Custodian shall
have the right to commence an action in the nature of an interpleader, and seek
to deposit the property in a court of competent jurisdiction.
14. COMPENSATION OF CUSTODIAN AND REIMBURSEMENT OF EXPENSES.
Custodian shall be entitled to compensation for its services as set forth in
Schedule A attached hereto and made a part hereof (the "Fee Schedule"), for
reimbursement of its out of pocket expenses as provided in this agreement, and
for all other necessary and proper disbursements and expenses made or incurred
by Custodian in the performance of its duties and obligations under this
agreement. The Principal shall pay or reimburse Custodian from time to time for
any transfer taxes payable upon transfers of Securities made hereunder.
The Principal shall promptly pay or reimburse Custodian for the
payment of any expense or liability named by the Principal, including but not
limited to the following payments for the account of the Principal: delivery
charges, insurance, interest, taxes, management, accounting and legal fees, and
other operating expenses of the Principal.
15. NOTICES. Any notices required or desired to be given to any party
hereto shall be in writing, shall be addressed to such other party at that
party's address set forth at the beginning of this agreement and shall be deemed
given when deposited in the United States mail, certified, return receipt
requested, or actually received by the party to whom it was addressed if
delivered by an alternate method. Any party may change the address to which
notices or other communications are to be given by giving the other party notice
of such change.
16. OVERDRAFTS OR INDEBTEDNESS. If Custodian, in its sole
discretion, advances cash on behalf of the Principal which results in an
overdraft because the cash held by Custodian for the account of the Principal
shall be insufficient to pay the total amount payable upon a purchase of
Securities as set forth in proper instructions or which results in an
overdraft for some other reason, or if the Principal is for any other reason
indebted to Custodian (including any amount owed by Principal to Custodian
pursuant to Section 14, above, and except for other borrowings for temporary
or emergency purposes using securities as collateral pursuant to a separate
agreement), such overdraft or indebtedness shall be deemed to be a loan made
by Custodian to the Principal payable on demand and shall bear interest from
the date incurred at a rate per annum (based on a 360-day year for the actual
number of days involved) equal to 2% over the prime rate in effect from time
to time as announced by THE WALL STREET JOURNAL under the section titled
MONEY RATES, or any successor title, such rate to be adjusted on the effective
date of any change in such prime rate. In addition, the Principal hereby
grants to and agrees that Custodian shall have a continuing lien and security
interest in and to any property at any time held by it for the benefit of the
Principal or in which the Principal may have an interest which is then in
Custodian's possession or control or in possession or control, of any third
party acting on Custodian's behalf. The Principal authorizes Custodian, in
its sole discretion, at any time to charge any such overdraft or indebtedness
together with interest due thereon against any balance of account standing to
the Principal's credit on the Custodian's books.
17. GOVERNING LAW. This agreement shall be construed and enforced
according to the laws of the State of Kentucky and all provisions shall be
administered according to the laws of said State, except as said laws are
superseded or preempted by any Federal law.
18. SEVERABILITY. The intention of the parties to this agreement is
to comply fully with all laws, rules, regulations and public policies, and this
agreement shall be construed consistently with all laws, rules, regulations and
public policies to the extent possible. If and to the extent that any court of
competent jurisdiction determines it is impossible to construe any provision of
this agreement consistently with any law, rule, regulation or public
-10-
policy and consequently holds that provision to be invalid, such holding shall
in no way affect the validity of the other provisions of this agreement, which
shall remain in full force and effect.
19. NON-WAIVER. No failure by any party to insist upon compliance
with any term of this agreement, to exercise any option, enforce any right, or
seek any remedy upon any default of any other party shall affect, or constitute
a waiver of, the first party's right to insist upon such strict compliance,
exercise that option, enforce that right, or seek that remedy with respect to
that default or any prior, contemporaneous, or subsequent default. No custom or
practice of the parties at variance with any provision of this agreement shall
affect or constitute a waiver of, any party's right to demand strict compliance
with all provisions of this agreement.
20. NO THIRD PARTY BENEFIT. This agreement is intended for the
exclusive benefit of the parties to this agreement and their respective
successors and assigns, and nothing contained in this agreement shall be
construed as creating any rights or benefits in or to any third party.
21. CAPTIONS. The captions of the various sections of this agreement
are not part of the context of this agreement, but are only labels to assist in
locating those sections and shall be ignored in construing this agreement.
22. DISPUTE RESOLUTION AND ARBITRATION. Any controversy or claim
arising out of or relating to this agreement, or the breach of the same, shall
be settled through consultation and negotiation in good faith and a spirit of
mutual cooperation. However, if those attempts fail, the parties agree that any
misunderstandings or disputes arising from this agreement shall be decided by
arbitration which shall be conducted, upon request by either party, before three
(3) arbitrators (unless both parties agree on one (1) arbitrator) designated by
the American Arbitration Association (the "AAA"), in accordance with the terms
of the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the United States Arbitration Act (Title 9 of the United States
Code), or if such Act is not applicable, any substantially equivalent state law.
The parties further agree that the arbitrator(s) will decide which party must
bear the expenses of the arbitration proceedings.
23. ENTIRE AGREEMENT. This agreement represents the entire agreement
between the parties and may not be modified or amended except by a writing
signed by the party to be charged, except as otherwise provided herein.
-11-
BANK ONE KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
SCHEDULE A
SCHEDULE OF DOMESTIC CUSTODY FEES FOR ARM FINANCIAL GROUP
This Schedule A sets forth the compensation agreed upon by 312
CERTIFICATE COMPANY (the "Principal") to be paid to Bank One, Kentucky, N.A.,
(the "Custodian") pursuant to the terms and conditions of Section 14 of the
Standard Custody Agreement effective ___________, 19__ and executed by such
parties. Any changes to the fee schedule shall be by execution of a new
Schedule A.
Effective Date of this Fee Schedule: April 3, 1998
Our basic approach to charging master custody fees is a blended fee structure
based on our fiduciary role, number of accounts opened, securities holdings,
and transaction volume.
Bank One's domestic custody services include safekeeping and controlling cash
and marketable securities in our nominee name via our trust accounting system;
processing the receipt and delivery of trades versus payment on a contractual
settlement date basis; collecting principal and income; investing cash balances
in a Bank One money market vehicle; monitoring for corporate actions; and
providing accountings of activity and positions as required.
Our quote is based upon our current understanding of services required and is
subject to change pending a detailed review of the portfolios and clarification
of additional services required.
I. ACCOUNT FEE
A flat charge of $750 per month will apply to each account maintained.
II. ISSUE HOLDING FEE
DTC/PTC/FED eligible security holdings $1.50 per issue per month
Physical exchange-traded security holdings $3.00 per issue per month
Unique assets such as closely held stock, limited partnerships, private
placements, insurance contracts, and other non exchange-traded assets are
subject to a flat annual fee per issue of $360 ($30/month) which includes year
end valuation. This fee increases to $50 per month per issue if monthly
valuation is required.
III. TRANSACTIONS
A fee of $15 will apply to all transactions including securities
purchases/sales, free receipts/deliveries, maturities/redemptions/exchanges and
outgoing wires. No transaction charges apply to dividend/interest payments and
Bank One sweep vehicle transactions.
A fee of $5 per principal paydown will apply to amortized securities.
-12-
IV. ADDITIONAL FEES
Check Cut $ 10
On-Line Portfolio Access* $ 50 per month
Out of pocket expenses at cost
Basic on-line system access; windows-based custody workstation software with
significant additional flexibility is $350 per month.
CUSTODIAN PRINCIPAL
Bank One, Kentucky, N.A. 312 CERTIFICATE COMPANY
By: /s/ Thomas S. Albright By: /s/ Robert L. Maddox
------------------------------- ------------------------------------
Printed Name: Thomas S. Albright Printed Name: Robert L. Maddox
--------------------- --------------------------
Title: VP Title: President
---------------------------- ---------------------------------
Dated: 4/21/98 Dated: 4/23/98
---------------------------- ---------------------------------
By: Robert L. Maddox
------------------------------------
Printed Name: Robert L. Maddox
--------------------------
Title: President
---------------------------------
Dated: 4/23/98
---------------------------------
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BANK ONE, KENTUCKY, N.A.
STANDARD CUSTODY AGREEMENT
SCHEDULE B
SEPARATE ACCOUNTS
This Schedule B sets forth all separate accounts opened by the Custodian
under the terms and conditions of the Standard Custody Agreement effective
____________, 19__, by and between 312 CERTIFICATE COMPANY ("Principal") and
Custodian. Any additions or deletions to this schedule will be by execution of a
new Schedule B.
SEPARATE ACCOUNT NAME SEPARATE ACCOUNT NUMBER
N/A N/A
CUSTODIAN PRINCIPAL
Bank One, Kentucky, N.A. 312 CERTIFICATE COMPANY
By: /s/ Thomas S. Albright By: /s/ Robert L. Maddox
----------------------------- -----------------------------------
Printed Name: Thomas S. Albright Printed Name: Robert L. Maddox
------------------- --------------------------
Title: VP Title: President
-------------------------- ---------------------------------
Dated: 4/21/98 Dated: 4/23/98
-------------------------- ---------------------------------
By: /s/ Robert L. Maddox
------------------------------------
Printed Name: Robert L. Maddox
--------------------------
Title: President
-----------------------------------
Dated: 4/23/98
-----------------------------------
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